IRMA’s Pirate Bay clause won’t float, say ISPs

18 Feb 2009128 Views

Following the recent High Court decision to implement the three strikes rules against Eircom customers found to be illegally downloading or uploading copyright material, a solicitor’s letter from the Irish Recorded Music Association’s (IRMA) legal counsel has thrown up more worrying implications for internet censorship.

The letter, received by internet service providers across Ireland earlier this week, has asked these companies to follow Eircom in removing customers found to be illegally accessing copyright material. The letter stated that this request is in accordance with Irish and European law.

However, in addition to this was the statement that Eircom has also agreed not to oppose any application IRMA may make seeking the blocking of access from its network to The Pirate Bay or similar websites.

The Pirate Bay is a torrent-tracking site that acts as a search engine for torrents or files that point users towards material that may or may not be copyright infringing, but which does not host any material itself.

The site’s owners are currently on trial in Sweden for copyright infringement, but the site has not yet been ruled illegal, nor is it currently illegal for internet users within Ireland to access this site.

“Even if they do get convicted in Sweden, they have not been convicted in the Republic of Ireland,” said Alex French, CEO of wireless internet provider BitBuzz.

“Illegal and blocked in one country is not illegal and blocked in another. What about countries like China, where political expression is considered to be illegal – this is not something that another country would comply with.

“If the industry is this worried about The Pirate Bay, it should bring the website to court in Ireland.”

French said that while BitBuzz does not condone the illegal downloading of copyright material in any way, it rankles at the request to block certain websites that may or may not be proven to contain or aide this process because this is setting a precedent in forcing ISPs to block access to websites on request.

“The mention of The Pirate Bay [in the letter from IRMA’s solicitors] seems to put the whole common carrier, mere conduit status of Eircom at risk because if you block one thing, then you have to ask why not block child pornography or racist hate sites,” said French.

“Why is it that protecting the music industry is more important than blocking anything else?”

On top of this, the wording ‘similar sites’ is vague and could be interpreted to mean many things, he said. “The difficulty is that it is alluding to any sites that allegedly breach copyright.

“What if you have an image on your website for which you haven’t obtained the proper release form? Does that mean the copyright holder can have all the ISPs block access to your website?

“This is a very scary thing and nobody knows what it means. There has been no talk of this as of yet.”

If ISPs, including Eircom, agree not to oppose blocking access to The Pirate Bay and other similar websites, is this not an agreement to web censorship?

“I don’t think there is any other way to interpret it,” said French.

“They are essentially agreeing to censor certain websites at the behest of the recording industry, without these websites ever having necessarily shown to be illegal in the Republic of Ireland.

“I would have a huge concern over what other websites may be blocked and what other industries will pile in now that the precedent has been set.”

The precedent now, French said, is that Eircom can block sites that IRMA does not like.

“Who becomes the adjudicator of what is acceptable and what isn’t?”

Further to this, French asked what the monetary and logistical implications of this threatened legal action are, a worry shared by Ronan Lupton, chairman of ALTO.

“The threat of legal action is ill-conceived in the current economic climate.

“With everyone worried about keeping jobs, they don’t want to worry about the additional costs of rolling out software or the damage of blocking users.

“We don’t condone the illegal downloading of copyrighted material, but threatening legal action without first talking to the operators is not the way to go with this,” Lupton said.

IRMA’s solicitor’s letter urged ISPs to respond in seven days, adding that a response in the negative will result in section 40(4) of the Copyright and Related Rights Act, 2002 being invoked against them.

“It’s a threat that unless ISPs agree to some unspecified plan within seven days, legal action will be taken. I think the industry as a whole is now examining what it should do. ALTO has called for legislation to come in to protect ISPs,” French added.